key to the study guide - Name

3.1 The problem of establishing a criterion for irretrievable breakdown
Crucial problem The crucial problem with regard to the principle of breakdown, is to
establish when a marriage can be considered as having broken down
irretrievably.
Two requirements
When is marital relationship
no longer
normal?
Criteria for normal
marital relationship
Test to determine
whether consortium
has been terminated
or violated
Application of test
. Schwartz
. Swart
. Naidoo
. Coetzee
3.2 The requirements laid down in section 4
In section 4(1) of the Divorce Act 70 of 1979 certain requirements
according to which it must be determined whether a marriage has broken
down irretrievably are laid down. When you study the provisions of
section 4(1) in your textbook on page 119, you will see that it lays down
two requirements, namely:
(1) the marriage relationship between the spouses must no longer be
normal
(2) there must be no prospect of the restoration of a normal marriage
relationship between the spouses
Therefore, it must be determined when a marital relationship is no longer
normal. You will see in your textbook on pages 119±120 that this is done
by first establishing what a normal marital relationship is. Note that the
legal definition of a normal marital relationship is sought in the concept of
consortium. This concept was discussed in detail in study unit 8 (``The
invariable consequences of marriage''). Make sure that you know what
this concept entails. When one or both of the spouses behave in such a way
that the consortium is terminated or seriously disrupted, one can say that a
normal marital relationship no longer exists between the spouses.
The test or method used by the courts to determine whether the consortium
has been terminated or seriously violated, involves subjective as well as
objective elements. In this respect note the meaning of a purely subjective
approach and a purely objective approach as explained in your textbook on
page 120. It is also very important that you must know exactly how these
approaches were applied in Schwartz v Schwartz, Swart v Swart and Naidoo v
Naidoo. This matter is explained very well in the note on the Swart case in
your prescribed casebook on pages 190±191. Also note the discussion on
Coetzee v Coetzee in your textbook on page 130 and the second last
paragraph of the note on the Swart case on page 191 of the casebook.
ACTIVITY
Study those parts on page 120 in your textbook and pages 190±191 in
your casebook that deal with the test or method used by the courts to
determine whether the consortium has been terminated or violated and then
answer the following questions:
(1) What tests do the courts use to determine whether the consortium has
been terminated or violated?
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